COVID-19: Guidance for Employers in Russia

The outbreak of Novel Coronavirus (COVID-19) has become a worldwide pandemic. The World Health Organization has warned that this is a public health emergency of international concern and all Russian regions, including Moscow, have declared the high alert regime. This stage precedes a state of emergency, but state authorities are introducing the respective measures in relation to COVID-19. Understandably, this may be creating great concern and unrest for you and amongst your workforce. Below we answer some key questions to clarify employers' new legal obligations and support you in protecting your business and people.

What are employers' obligations in respect of COVID-19?

Local authorities in each Russian region may impose obligations on employers in relation to COVID-19, and local obligations should be checked in each case. By way of example, local measures have been imposed in Moscow in accordance with the Decree of the Mayor of Moscow dated 5 March 2020 No 12-UM as amended (the "Decree"), which outlines a list of business activities in relation to which individuals (including employees and visitors) are not allowed to attend business premises where such activities are carried out. Employers who do not fall within the list of suspended business activities (the "non-affected employers") must comply with the following obligations:

measure employees' temperatures daily at work. Employees with a fever must be suspended from work and prevented from entering the employer's premises;

assist employees in enforcing the self-isolation regime;

if an employee has tested positive for COVID-19, employers should promptly provide information about all work-related contacts of the affected employee (upon a request from the Head Office for Implementing Measures Preventing Entry and Spread of COVID-19 in Moscow) and ensure disinfection of the premises where the affected employee was located;

prevent employees who are under an obligation to self-isolate (discussed below) from entering the employer's premises/territory and/or the employee's workplace;

subject to the consent of vulnerable employees (as defined below), allow such employees to work from home and/or provide annual leave;

ensure social distancing rules are complied with by all employees and other individuals, for example, byapplying special markings and introducing restrictions on accessing and remaining in the premises; and

decide on the number of employees and contractors (i) who cannot work from home on a distance work basis, due to a necessity for them to be directly involved in continuous technological and other processes necessary to ensure the functioning of the business and (ii) who should be transferred to working from home on a distance work basis. The local authorities should be informed of this decision, the business activities, and the address where such activities are carried out.

From 12 May 2020, non-affected employers are also subject to a new set of requirements as summarised below:

to procure that all visitors and employees (except for employees who do not work in the presence of any other individual) use (i) face masks and/or respirators while attending the employer's premises/territory and/or the employee's workplace, and (ii) gloves while attending common areas within the employer's premises/territory and/or the employee's workplace (including elevators, sanitary facilities, eating areas), and where physical contact with objects used by unlimited number of people (including door handles and handrails) is likely;

to measure employees' body temperature at least once every four hours;

to test at least ten percent of all employees for COVID-19 between 12 May and 31 May 2020, and to keep doing such tests at least every 15 days from 1 June 2020 (again, for at least ten percent of all employees);

to arrange for employees' blood tests for immunity to COVID-19, as required by the Health Department of the city of Moscow;

to install dividing walls where it is not possible to maintain the social distance between permanent workplaces; and

to comply with COVID-19 related measures recommended by the Federal Service for Consumer Protection and Human Weill- Being.

In the case of non-compliance with the above obligations, the employer's business activities may be suspended.

There are also new general recommendations applicable to non-affected employers including, among others:

to minimise the number of vulnerable employees who are above 65 years of age when deciding who should continue working from the employer's premises; and

to install hand sanitizers in the workplace.

In accordance with the Decree, the following individuals are currently under an obligation to self-isolate:

(i)individuals who arrive from China, South Korea, Iran, USA, EU countries, and other European countries (including, among others, the United Kingdom, Switzerland, Ukraine, Moldova and Belarus). Such individuals should self-isolate for 14 days from the date of their arrival in Russia;

(ii) individuals who are obliged to do so in accordance with a public health officer's order (including those suspected of having COVID-19 and individuals with symptoms of acute respiratory viral infection and other acute respiratory diseases). Such individuals should isolate for the period indicated in the applicable order;

(iii) members within the same household as individuals falling under (i) and (ii), for the periods outlined in (i) and (ii) respectively;

(iv) individuals over the age of 65 (except for key workers). Such individuals should isolate from 26 March to 14 June 2020 (inclusive); and

(v) individuals with one or more of the health conditions as listed in the Decree and are therefore vulnerable to COVID-19 (except for key workers). Such individuals should isolate from 26 March to 14 June 2020 (inclusive),

(individuals in (iv) and (v) together, the "vulnerable employees").

Please note that subject to limited exceptions, a self-isolation requirement has been imposed on all residents of the city of Moscow from 30 March 2020. This requirement applies regardless of age and will remain in effect until lifted by the respective local authorities.

On 25 March 2020, the Russian President's Decree declared the week commencing Monday 30 March to Friday 3 April a non-working week (subject to certain exceptions). This non-working period was extended until 30 April and later extended again until 11 May 2020. The Russian Ministry of Labour commented that the non-working period should not constitute public holidays or days off work and employees should be entitled to full salary. The national regime of non-working days ended on 12 May 2020, but regions are entitled to impose and/or keep their own restrictions, including suspension of business activities and self-isolation requirements based on the epidemiological situation in the respective territories.

The Russian Federal Service for Consumer Protection and Human Well-Being has also issued:

(i) general recommendations on measures to be implemented by employers to prevent the spread of COVID-19. These measures include:

introducing a procedure for the disinfection of employees' hands (e.g. by using antiseptics or disinfecting wipes) when entering employer's premises;

informing employees of the need to wash their hands with soap or disinfect them with antiseptic regularly during the working day;

cleaning the workplace with disinfectants every two hours, paying particular attention to door handles, switches, handrails and handholds, contact surfaces (i.e. employees' desks and chairs and office equipment) and common areas;

maintaining (at least) a five day supply of (i) disinfectants for cleaning employer's premises and employees' hands, and (ii) respiratory protective equipment (e.g. masks and respirators) for employees with COVID-19 symptoms;

airing the workplace every two hours; and

prohibiting employees from eating at their work space.

recommendations to employers whose employees work on a rotational basis;

(ii) specific recommendations on preventive and disinfection measures to prevent the spread of COVID-19 for:

In Moscow, all schools are now on summer holidays until September 2020. Pre-school institutions and schools may organize temporary groups for pre-school children and children from years 1 to 4 respectively, based on parents’ request. The Russian Ministry of Labour has recommended that employees with children (of preschool and school age) are transferred to a working from home regime.

Can employers request or require information from an employee about potential or actual exposure to the virus?

The question of whether an employee can be asked to provide information on where they have been, their exposure to the virus, or body temperature sits firmly in the crossover between data privacy and employment.

As outlined above, the Decree requires the Moscow based employers to, amongst other things, ensure that employees' temperatures are measured daily. Any employee with a fever should be removed from the work place. To achieve this, many companies have started using thermal infrared devices to check the body temperature of their employees. The Decree also imposes an obligation on Moscow based employees to participate in testing arranged by the employer in accordance with the Decree.

In addition, from 12 May 2020, Moscow based employees must promptly inform their employers if:

(i)they have a confirmed diagnosis of diabetes, obesity, hypertension of the second degree, chronic obstructive pulmonary disease, or bronchial asthma of the second degree;

(ii)they are pregnant; and/or

(iii)they (or the members of their household) have symptoms of (i) acute respiratory viral infection or a confirmed diagnosis of acute respiratory viral disease, (ii) a new coronavirus infection (2019-nCoV), or (iii) pneumonia (the "self-reported employees").

The Russian Data Protection Agency ("DPA") issued a clarification that employee health data should be processed in accordance with employment legislation. Russian employment legislation allows an employer to request and process employee health data in order to establish whether an employee may discharge their employment functions. Previously, the DPA stated that such temperature checks are required to establish whether an employee can discharge their employment functions and as such, employee consent is not required. The DPA also addressed temperature checks of visitors and third parties (who are not employees), and suggested that if there is a clear notice at the entrance of the premises that body temperature will be measured, and the visitor still decides to come into the premises, this will constitute consent by the visitor for the collection of health data. Employees will also benefit from the notice on temperature checks prior to entering the office.

In relation to the question of employers requesting information from employees on the countries they have visited, individuals have an obligation under Russian law to report the countries and/or territories that they have visited to the designated state authorities, and then self isolate (where relevant). This obligation lies with the individuals and not their employers.

What are employers' obligations where employees are absent or infected?

As mentioned above, employers must prevent employees who are under an obligation to self-report and/or to self-isolate from entering the employer's premises/territory and/or the employee's workplace. Based on the Russian Ministry of Labour's comments, an employer is not entitled to request employees to take a non-paid leave for the period of required self-isolation. Instead, such employees are entitled to and should apply for a medical sick pay certificate. Self-isolating employees returning from abroad should apply for a medical sick pay certificate on-line via their accounts on the Russian Social Insurance Fund (the "Fund") website. When making an application, there is an option to apply for medical sick pay certificates for all employees within the same household. A medical sick pay certificate will be provided in electronic form for 14 days and employees may provide the details of the certificate to an employer.

Sick pay will be paid by the Fund. Employers have an obligation to provide the information required for the calculation and payment of sick pay to the Fund within two business days of (i) the Fund's request, or (ii) the receipt of the sick pay certificate by the employee. Sick pay is payable in two instalments - the first instalment will be paid within the first seven days of self-isolation and the second will be paid after the medical sick pay certificate is completed. The certificate will be deemed complete if the employee does not refer to a medical institution for health care after two-weeks' self-isolation. The second instalment is paid by default without a need to refer to a medical institution.

What are employers' obligations where offices are partially or fully closed?

Although COVID-19 constitutes a force majeure event, Russian employment law is based on the fundamental principle that an employer shall pay salary to its employees in full and in time regardless of any force majeure circumstances, with very limited exceptions. As mentioned above, during the non-working period all employees were entitled to their full salary. Upon expiry of the non-working period, if Russian regions decide to impose and/or maintain measures on suspension of business activities, this should not affect the employees' salary. The latter is expressly provided for in the Decree of the Russian President on expiry of the non-working period. As we mentioned above, such measures are imposed in Moscow and affect employers who fall within the list of suspended business activities.

In other cases, if a business is suspended due to no fault of an employer, employees are entitled to at least two thirds of the employee’s base salary, calculated pro rata for the days of suspension (i.e. the salary agreed in an employment contract without taking into account bonuses and other incentives payable to the employee).
If a business is suspended due to a fault of the employer, employees should be entitled to at least two thirds of the employee’s average salary (which usually includes all types of payments envisaged by the employer's policies as remuneration for the job, including bonuses and other incentives).
The employer and employee may agree on remote working during any closure, but working from home regime is only available if both parties agree to it. Generally, working from home does not affect an employee's salary, which should be paid in full.

Alternatively, while agreeing on the working from home regime, the parties may also agree on a temporary reduction of the employment obligations and/or regular working hours and a pro rata reduction of salary for the period of closure. In the absence of such agreement, the employee's salary shall remain unchanged. The Russian Ministry of Labour noted that when introducing a working from home regime, an employer should set out applicable procedures, schedule and ways of communicating information about work assignments and their implementation. The employer should also issue a respective employment order which employees should read and acknowledge in writing.